The court called for the case to be dismissed, as Trump is no longer in office and Twitter has blocked him from the platform. Justice Clarence Thomas agreed with the decision in light of Trump no longer being president, but the conservative jurist illustrated the complexity of the matter given that Trump ultimately did not have full control over his own account.
“[I]t seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas wrote in a concurring opinion.
The Second Circuit Court of Appeals had ruled against Trump, claiming that as president, he used his Twitter account to discuss political matters and therefore the interactive participation of commenting on his tweets was considered a public forum protected by the First Amendment. Blocking those who criticized him, therefore, was unconstitutional viewpoint discrimination, they had ruled.
Thomas noted that while Trump had the power to block other users, Twitter was then able to block “all Twitter users from interacting with his messages” by banning his account altogether.
“Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents’ complaint of stifled speech,” Thomas pointed out, stating that “[w]hether governmental use of private space implicates the First Amendment often depends on the government’s control over that space.”
Thomas acknowledged how modern technology is not always easily addressed by existing legal doctires, and warned that the Supreme Court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
With that in mind, he cautioned that the power wielded by social media giants like Twitter poses its own issues.
“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” Thomas said. “But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
Fox News’ Shannon Bream and Bill Mears contributed to this report.